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State of Orissa Vs. Banshi Nayak - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1954CriLJ980
AppellantState of Orissa
RespondentBanshi Nayak
Cases ReferredSurajpal Singh v. The State
Excerpt:
.....has discussed this point in detail for coming to the conclusion that her statement before the committing magistrate is prima facie of better worth and more reliable. she has stated in the trial court that there was good feeling as between herself and the deceased. i entirely agree with the learned sessions judge that her statement before the committing court is reliable and of better worth. if the court believes in view of the circumstances of the case that it is reliable & true, certainly there is no bar to his acting upon that evidence and convicting the accused. the calcutta high court as well as the nagpur high court and the lahore high court in the cases cited above have taken that view. it being so, and in view of the circumstances which i have already pointed out above, we..........trial court she resiled from her former statements denying to have made any statement before the committing magistrate, implicating her husband, but saying that she was compelled by threat of the choukidar and the police to make a statement before the magistrate under section 164, criminal p. c.the learned sessions judge has admitted her statement before the committing magistrate as evidence under section 288, criminal p. c., and having considered all the circumstances as to why she has resiled from her former statement in the trial court, has given a finding, to the following effect:apart from these considerations there is adequate room for a motive for her telling a lie in the trial stage. in such a position, i have no doubt to hold that her testimony in the trial stage is unreliable.....
Judgment:

Mohanty, J.

1. This is an appeal by Government from the order of the Additional Sessions Judge, Cuttack, acquitting the accused Banshi Naik of the charge under Section 302, I. P. C.

2. Banshi was a resident of Keonjhar State. The deceased (Tinka, Dei) was a resident of Sukinda. She had a house belonging to her brother at Sukinda. Tinka was caste female of the accused. She went to Keonjhar and remained there for about three years as the concubine of the accused. About three years back both the accused and Tinka went away to Sukinda where they stayed in the house belonging to the brother of Tinka, Sometime thereafter the wife and children of the accused came away from Keonjhar and stayed in the same house at Sukinda.

Thereafter Tinka left the house at Sukinda for some unknown destination and stayed out for some six months. She then returned to Sukinda, with an illicit pregnancy. However, in spite of the objection of the caste people, the accused took her back to the house; and it is why the accused was ex-communicated from the caste. However, both the accused and Tinka lived peacefully for about two months. But on 24-12-1951 Tinka was found dead in the room of the accused with fatal antemortem injuries on her head caused with a heavy blow.

The postmortem report (Ext. 1) and the evidence of the doctor (P. W. 2) show that there were six injuries on her head, one of which was that her skull-bone had been fractured into five pieces, with fragments of the bone pressing the brain substance and the brain substance coming out. According to the doctor this injury could have been caused with the blunt side of a Barsi and the injury so caused was, in the ordinary course, sufficient to cause death.

3. It is alleged that on the date of her death, the accused and his two sons who are minors went out to the thrashing floor in the morning; but the accused came home at about noon and picked up quarrel with Tinka, because she did not obey him and refused to serve his meal. In the course of the quarrel, Tinka expressed some teasing words to the effect that though she had become illegally pregnant, she would put the child to be the issue of the accused. At this stage the accused gave a blow to Tinka on her head with a Barsi which partly smashed her head. She fell down dead.

4. It is further alleged that the village Chowkidar (P. W. 3) on coming to know of the incident went to Thana and lodged the first information report in the Thana, situate in that very village. The accused himself was found at the Thana when the P. I. R. was being drawn up and was arrested there.

5. The accused all along pleaded not guilty to the charge.

6. The only witness against the accused was his wife Kali Dei (P. W. 1). About four days after the occurrence, she made a statement before a Magistrate (P. W. 10) under Section 164, Criminal P. C. implicating her husband to be the murderer of Tinka. She was examined in the committing Court where she has made a similar statement, In the trial Court she resiled from her former statements denying to have made any statement before the committing Magistrate, implicating her husband, but saying that she was compelled by threat of the Choukidar and the police to make a statement before the Magistrate under Section 164, Criminal P. C.

The learned Sessions Judge has admitted her statement before the Committing Magistrate as evidence under Section 288, Criminal P. C., and having considered all the circumstances as to why she has resiled from her former statement in the trial Court, has given a finding, to the following effect:

Apart from these considerations there is adequate room for a motive for her telling a lie in the trial stage. In such a position, I have no doubt to hold that her testimony in the trial stage is unreliable and that her testimony in the committing Court is prima facie of a better worth and more reliable.

7. Despite this opinion, the trial Court has further proceeded to observe that:

Even though her testimony in the committing Court be created as substantive evidence in law, it does not mean that the court is bound to accept one or other of the two stories advanced by her at different stages, unless there is 'independent corroboration' of her statement before the committing Court.

He has further held that as there is no independent corroboration in this case, so he does not think it proper to act upon her statement in the committing Court. It is on this reasoning that he has acquitted the accused of the charge of murder. It should further be noted that though there is no suggestion of any kind in evidence, he has made an observation to the effect that P. W. 1 might have committed the murder. Against this order of acquittal this appeal has been, filed by the Government.

8. The learned Assistant Government Advocate has urged vehemently that on the very finding of the learned Additional Sessions Judge to the effect that the testimony of P. W. 1 in the trial Court is unreliable and that her testimony in the committing Court is prima facie of better worth and more reliable, the accused should have been convicted by him.

The accused resides with his concubine (the deceased) at Sukinda in the house of her concubine's brother. His family consists of himself, his married wife (P. W. 1), the deceased concubine, two minor sons, one aged 16 or 17 and another aged 15 or 16 and a child daughter. It is in evidence that on the morning of the day of the occurrence, both the accused and his minor sons had gone out to the thrashing floor to work. The occurrence took place on 24-12-1951 a little before 1 P. M. At the time when the occurrence took place, the accused was not in the Khala (thrashing floor). It appears from the evidence of P, W. 1 who is the wife of the accused, that she called her sons on seeing the deceased lying dead in the house, she did not call her husband to come there. It therefore clearly shows that to her knowledge, her husband was not in the thrashing floor.

On hearing the cry of P. W. 1, the chowkidar (P. W. 3) who is their neighbour, and who was passing by that way from the hospital went to her house. Immediately thereafter, he proceeded to the Thana and lodged P. I. R. at about 1 P. M. saying that about 12 noon, there was a quarrel as between the deceased and the accused and that in the course of the quarrel, the accused, killed Tinka Dei by striking her on her head with the blunt side of the Barsi. He has further stated therein that on hearing it being a neighbour, he has come to lodge F. I. R. in the police station. But he has not seen the occurrence himself.

P. W. 3 has stated that on being questioned by him inside the house, P. W. 1 narrated the incident in detail and named her husband as the murderer. P. W. 1 has stated in her evidence in the trial court that the Chowkidar (P. W. 3) had on hearing her cry gone to her house. If it is so, it does not seem likely that he being the Chowkidar & her neighbour, would not question her as to who has committed the murder. His evidence does not show from what other source, excepting what was narrated to him by P. W. 1, he has come to know the details about the occurrence. I see no reason why P. W. 3 should be disbelieved.

P. W. 1 named her husband as the culprit immediately after the occurrence. Her statement under Section 164, Criminal P. C. was recorded by a Magistrate (P. W. 10) about four days after the occurrence. Her evidence was taken by the committing Magistrate about four months after the occurrence. In her statement recorded under Section 164, Criminal P. C. and in her evidence before the committing Magistrate she has named her husband as the culprit.

It is said, that, she, out of fear, when the Chowkidar challenged her to be the culprit, named her husband as the murderer. It is futile to accept it as believable. There is no motive as to why she would connect her husband with the murder immediately after the occurrence, and even before the committing Magistrate. She does not say that at the instance of the police or the Chowkidar she named her husband as the culprit. In such circumstances, I think her statement at the three different stages of the case cannot be ruled out as false, because in order to save herself and her husband, she could, in the ordinary course of events, have named some of his neighbours or some other outsider as the culprit.

The learned Sessions Judge has discussed this point in detail for coming to the conclusion that her statement before the committing Magistrate is prima facie of better worth and more reliable. Moreover, she has sufficient and convincing motive for resiling from her former statement in the trial court - her motive being to save her husband from punishment in the murder case.

There is no suggestion in evidence that she is herself the murderer. She has stated in the trial Court that there was good feeling as between herself and the deceased. We have it from her evidence and also from the evidence of P. W. 3 that she was crying on seeing Tinka dead, and was calling her sons but not her husband. It being so, and in absence of any suggestion that she is the murderer, it cannot be held that she is responsible for the death of the deceased.

Her evidence before the committing Magistrate shows that there was a quarrel between the accused and Tinka at the moment. She did not accompany him to work in the field; and though asked by the accused to follow him, she went out to the village, and ultimately came back to the house. Her 'husband' (the accused) came to the house in the afternoon and asked her why she did not come to work. She gave him a very insolent reply. Her husband asked her to serve him his meal, but she refused. In the course of the quarrel that ensued, he struck her on her head with a Barsi causing her immediate death. This fact has been deposed to by P. W. 1 in the committing court though she has resiled from that statement at the trial stage.

At the time when this occurrence took place, P. W. 1 was taking her meal on the eastern verandah of the house. I see no reason why she should be disbelieved when there is no sufficient reason why she would make a false statement incriminating her husband as the murderer. I entirely agree with the learned Sessions Judge that her statement before the committing Court is reliable and of better worth.

9. The learned Additional Sessions Judge has not utilised that evidence though admitted under Section 288, Criminal P. C. for the reason that there is no independent corroboration of it. In my view, independent corroboration of it is not always necessary. The evidence admitted under Section 288, Criminal P. C. should be treated as substantive evidence for all purposes without limitation. All that the trial court should see Is what weight and credit should be given to that evidence when the witness has made various statements at different stages of the hearing. If the Court believes in view of the circumstances of the case that it is reliable & true, certainly there is no bar to his acting upon that evidence and convicting the accused. Such an evidence is as much an evidence in the case as depositions of other witnesses in the trial court. It is for the Court to accept it or not just as the depositions of other witnesses. Section 288, Criminal P. C. does not lay down that there should be an independent corroboration of that statement so that the Courts should act upon it.

This view has been taken by the Calcutta High Court in the case in - 'Manor Ali v. Emperor' AIR 1934 Cal 124 (A); by the Nagpur High Court in the case in - 'Parmanahd Ganga Prasad v. Emperor' AIR 1940 Nag 340 (B); by the Lahore High Court in the case in - 'Shamira Mandu v. Emperor' AIR 1946 Lah 380 (G) and by the Patna High Court in the case reported in - 'Nebti Mandal v. Emperor' AIR 1940 Pat 289 (D). I am in full agreement with the view taken in those cases. As a matter of law corroboration is not required. Such corroboration can be found in the circumstances surrounding the case. The credit to be given to the statement of witnesses is a matter not regulated by the rules of procedure. When evidence is substantive evidence without limitation, the only test that has to be applied is that laid down by Section 3, Evidence Act.

But the learned Sessions Judge relying on the ruling of the Privy Council reported in - 'Bhuboni Sahu v. The King' AIR 1949 PC 257 (E), and on certain observations of the Patna High Court in the case reported in - 'Jehal Teli v. Emperor' AIR 1925 Pat 51 (P), has observed that independent corroboration is absolutely necessary so as to utilise the evidence of witnesses taken in the committing court for the purpose of conviction.

But the observations of the Privy Council cannot apply to the facts of the present case. It is in that case that an approver resiled from his previous statement made by him in the committing court, and the evidence before the committing court was taken into record as substantive evidence under Section 288, Criminal P. C. There was no other evidence except the tainted evidence of the approver made under Section 164, Criminal P. C. to corroborate his statement before the committing Magistrate. Their Lordships have observed in that case that the approver being an accomplice, his evidence, from the beginning is tainted one and as such one tainted evidence cannot corroborate another tainted evidence. It is, therefore, that the Privy Council in such cases has insisted that such evidence needs corroboration by independent evidence.

But that is not the case here. Nobody Says that P. W. 1 is an accomplice. At least there is no evidence to that effect. Her evidence from the beginning cannot be said to be a tainted one. It being so, her statement before the committing Magistrate can be corroborated by her statement recorded under Section 164, Criminal P. C. and also by the evidence of P. W. 3 to the effect that just after the incident she told him that her husband was the culprit. In such a case her statement under Section 164, Criminal P. C. can legally corroborate her subsequent statements, and for that purpose it has been taken into evidence.

The Calcutta High Court as well as the Nagpur High Court and the Lahore High Court in the cases cited above have taken that view. The Calcutta High Court in the case in -'AIR, 1934 Cal 124 (A)', relied upon the decision of the Madras High Court in the case of - 'Vellaiah Kone v. Emperor' AIR 1923 Mad 20 (G) in support of the view that a statement by a witness recorded by a Magistrate under Section 164, Criminal P. C. is admissible in evidence to corroborate the statement made by that witness before the committing Magistrate and from which statement he resiled in the Sessions Court. I am in full agreement with that view.

As regards the subsequent view of the Patna High Court reported in -'AIR 1925 Pat 51 (F)', I would with great respect differ from it that independent corroboration is necessary in such cases as the present one. No doubt, some amount of evidence either direct or circumstantial is necessary for the purpose of enabling the Court to determine what credit should be given to such evidence of a witness. For as she has made different statements, her evidence should be taken with caution. It should not always be independent. It should either be corroborated or there must be special reasons for believing it.

However in the present case, there are reasons for believing the evidence of P. W. 1 made in the committing Court. It being so, and in view of the circumstances which I have already pointed out above, we accept her statement before the committing Court as true and reliable, especially when there is no cogent reason why she would lie against her husband and implicate him as a culprit not only immediately after the occurrence but also at the subsequent stages of the case. Accepting her statement as true and reliable, we hold without hesitation that in course of the quarrel, the accused killed the deceased with a Barsi which has been identified by P. W. 5 as belonging to him (accused) and which was seized on its production by the accused himself and has been proved by the opinion of the Serologist as stained with human blood.

10. The question that would arise next is whether the accused deserves capital sentence. For about more than five years, the deceased was the concubine of the accused. But a few months before the murder she disappeared and remained untraced. The accused was anxious to get her back and made a search for her, but could not ascertain, her whereabouts. About two months before the murder she suddenly appeared and was found to have been illegally pregnant. Notwithstanding it, the accused took her into his house and practically pardoned her for her fault; but on the day of the occurrence, the deceased was very Impertinent and gave him a very insolent and insulting reply when he questioned her as to where she had gone out in the morning. Notwithstanding it, the accused wanted her to serve him with his meal, but she refused to do so. There arose a violent quarrel between them and in the course of that quarrel the accused was off his head & with his own Barsi struck her head with its blunt side causing her immediate death. In such circumstances, we consider it proper to award the accused the lesser punishment.

11. We would, therefore, allow this appeal, set aside the order of acquittal, convict the accused under Section 302, I. P. C. and sentence him to transportation for life.

Narasimham, J.

12. I agree that the appeal should, be allowed and the respondent sentenced to transportation for life.

13. We are fully conscious of the fact that this is an appeal against acquittal and as emphasised in the recent decision of the Supreme Court in - 'Surajpal Singh v. The State' : 1952CriLJ331 , the finding of a trial Court should not be set aside except for grave and compelling reasons. The case against the respondent rests on the sole testimony of his wife (P. W. 1). In her statement under Section 164, Criminal P. C. recorded four days after the commission of the crime she clearly implicated her husband. In her subsequent deposition before the committing Magistrate (admitted under Section 288, Criminal P. C.) she reiterated the same story. But in her deposition before the Court of Session she completely resiled from her previous statements and tried to exonerate the respondent.

The learned lower Court for good reasons held that her statement before the Court of Session was unreliable and her testimony before the committing Magistrate was prima facie 'of a better worth and more reliable'. Having thus appreciated the facts correctly the learned Sessions Judge thought that in view of the contradictory statements of P. W. 1 on different occasions her evidence was no better than that of an accomplice and that it required independent corroboration. He then relied on - 'AIR 1949 PC 257 (E)', in which their Lordships observed 'an accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition'. The learned Sessions Judge thought that this principle would apply to the deposition of an unreliable witness such as P. W. 1 and that her earliest statement under Section 164, Criminal P. C. would not amount to independent corroboration of her deposition before the committing Magistrate.

14. This reasoning of the learned Sessions Judge is not tenable. The position of an accomplice differs fundamentally from that of a witness who contradicts himself on two different occasions. An accomplice's testimony suffers from the initial taint arising out of his participation in the crime; whereas the statement of an ordinary witness does not suffer from any such taint whatsoever. It is true that rule of prudence may require corroboration where a witness has proved himself to be unreliable by making two different statements on oath on two occasions. But the question as to which of the two statements should be preferred depends on other factors and the fact that at the earliest possible opportunity he made a statement which is substantially in agreement with one of his depositions in Court may amount to adequate corroboration of that deposition.

Moreover, the close relationship between P. W. 1 and the respondent and the probability that while deposing before the Court of Session P. W. 1 might have been induced to resile from her previous statements with a view to save her husband cannot be overlooked. On the other hand, when she first made the statement under Section 164, Criminal P. p. there was hardly any reason for her to falsely implicate her husband.

15. Apart from the statement under Section 184, Criminal P. C. there is also the evidence of the Choukidar Kasi Naik (P. W. 3) to the effect that When he went to the spot on hearing the alarm P. W. 1 made a statement before him which clearly incriminated her husband. There was thus hardly any time for her for concocting a false case.

When the Choukidar at once ran to the police station to lodge information he saw the respondent also going that side. Thus the presence of the respondent near about the place of occurrence immediately after the commission of the crime is proved by the Choukidar and there is thus some corroboration of the evidence of P. W. 1. The respondent's conduct in going straightaway to the police station is also significant. If somebody else had committed the murder of his concubine, one would expect him to raise an alarm, inform the Choukidar about what had happened and then accompany him to the thana.

On the other hand, the Choukidar's evidence shows that when he went to the house of the respondent and learnt from the latter's wife (P. W. 1) about the circumstances under which the woman was murdered the respondent did not meet him. But when the Choukidar proceeded to the thana the respondent also accompanied him to the place. Doubtless, the statement made by the respondent at the police station is inadmissible; but his conduct as deposed to by the Choukidar is inconsistent With his being innocent of the crime.

16. The alternative theory that P. W. 1 herself might have murdered the woman is hardly believable. Even the learned Sessions Judge himself was constrained to say that 'it is a very remote contingency'. It will be fantastic to say that P. W. 1 who seems to be a simple village labourer would be so diabolical as to murder her husband's concubine and immediately afterwards raise an alarm falsely accusing her husband of having committed the crime.

17. In the special circumstances of the case, therefore, we think that the grounds on which the learned Sessions Judge had rejected the statement of P. W. 1 before the committing Magistrate (though it was admitted as substantive evidence under Section 288, Criminal P. C., are based on a misconception of law and that his view on facts that that deposition is prima facie 'of a better worth and more reliable' should be preferred. This is one of those exceptional cases where we would be justified in interfering with the order of acquittal.


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